Cosgrove v Cairns Residential Property Management Pty Ltd [2014] QCATA 145

CITATION: Cosgrove v Cairns Residential Property Management Pty Ltd [2014] QCATA 145 PARTIES: Zane Cosgrove (Applicant/Appellant) v Cairns Residential Property Management Pty Ltd (Respondent) APPLICATION NUMBER: APL512-13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Thomas, President DELIVERED ON: 20 June 2014 DELIVERED AT: Brisbane ORDER MADE: Application for leave to appeal is refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – RESIDENTIAL TENANCIES – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 142(3)(a)(i) Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 419(3) Chambers v Jobling (1986) 7 NSWLR 1, cited Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, applied Dearman v Dearman (1908) 7 CLR 549, applied Fox v Percy (2003) 214 CLR 118, applied Pickering v McArthur [2005] QCA 294, applied APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). -- 1 of 3 -- 2 REASONS FOR DECISION [1] Mr Cosgrove was a tenant in a property managed by Cairns Residential Property Management Pty Ltd from July 2011 to June 2013. At the end of the tenancy, the agent filed a claim for compensation for arrears of rent, cleaning and repairs to a screen door. A Magistrate, sitting as a member of the tribunal, allowed the claim and ordered Mr Cosgrove pay compensation of $908.32. [2] Mr Cosgrove wants to appeal that decision. He says he has evidence of the lessor’s breach of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) which means that the original claim should have been dismissed. [3] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.1 The principles the appeal tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as his Honour then was) in Pickering v McArthur: There are numerous authorities, in varying language but with unvarying emphasis, that leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.2 [4] Mr Cosgrove has filed copies of emails with his application for leave to appeal. The appeal tribunal will only accept additional evidence if it was not reasonably available at the time the proceeding was heard and determined. To rely on these emails, Mr Cosgrove must satisfy three tests: with reasonable diligence, could they have been obtained for use at the trial? If allowed, would they be likely to have an important impact on the result of the case? Are they credible?3 [5] An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party’s case at the initial hearing. Mr Cosgrove told the learned Magistrate that he had the evidence he now wants to submit.4 The learned Magistrate told Mr Cosgrove that the time to present that evidence was ‘now’.5 Mr Cosgrove’s response was that he had a ‘numerous number of issues going on at the same time’.6 That is not an adequate explanation as to why this material was not available earlier. [6] In any event, the evidence will not have an important impact on the result of the case. The emails show that the matters of which Mr Cosgrove complains occurred in 2012. Applications for compensation must be 1 QCAT Act s 142(3)(a)(i). 2 [2005] QCA 294 at [3]. 3 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408. 4 Transcript page 1-5, lines 41-43. 5 Transcript page 1-5, line 45; page 1-6, line 1. 6 Transcript page 1-6, lines 3-4. -- 2 of 3 -- 3 made within 6 months of a party being aware of the breach.7 The learned Magistrate would not have been able to consider Mr Cosgrove’s claims even if the evidence had been available. The evidence should not be admitted and the application should proceed on the basis of the material that was before the learned Magistrate. [7] Mr Cosgrove complains about alleged breaches of the Residential Tenancies and Rooming Accommodation Act which may give rise to a penalty. Those breaches, if they can be proven, do not give Mr Cosgrove an excuse not to pay rent, or leave the tenancy clean and tidy, or give Mr Cosgrove permission to damage the tenancy. This is not a valid ground for leave to appeal. [8] The learned Magistrate stated in his reasons that, after considering the evidence filed by both parties, he preferred the evidence of the Real Estate over that of Mr Cosgrove. He found that the property was left in a poor state and required significant cleaning.8 After considering the tax invoices filed by the Real Estate, for both the cost of cleaning and repairs to the property, he was satisfied that Mr Cosgrove was liable for those monies, and ordered Mr Cosgrove pay the Real Estate accordingly. [9] The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.9 An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case,10 however that is not the case here. After reading the transcript and considering the material filed, there is nothing to persuade me the learned Magistrate should have taken a different view of the facts. [10] There is no reasonably arguable case that the learned Magistrate was in error, and leave to appeal should be refused. 7 Residential Tenancies and Rooming Accommodation Act s 419(3). 8 Transcript, page 1-7, line 26. 9 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125- 126. 10 Chambers v Jobling (1986) 7 NSWLR 1 at 10. -- 3 of 3 --